ROSA v. U.S.

October 18, 2001

GENARO ROSA, PETITIONER,V.UNITED STATES, RESPONDENT.

The opinion of the court was delivered by: Rakoff, District Judge.

ORDER

On September 24, 2001, the Honorable Gabriel W. Gorenstein, United
States Magistrate Judge, issued a thorough Report and Recommendation in
the above-captioned matter recommending that the pro se petitioner's
motion under 28 U.S.C. § 2255 to vacate his judgment of conviction be
denied and the petition dismissed.

Petitioner Genaro Rosa, proceeding pro se, has moved under
28 U.S.C. § 2255 to vacate his judgment of conviction.*fn1 For the
reasons stated below, it is recommended that Rosa's motion be denied.

Proceedings before the Trial Court

On May 6, 1997, Genaro Rosa, along with three other individuals, was
arrested for possession of heroin. On August 21, 1997, a grand jury
indicted him on charges of (1) conspiracy to distribute, or possess with
intent to distribute, one kilogram or more of mixtures and substances
containing heroin and (2) possessing with intent to distribute
approximately 368 grams of mixtures or substances containing heroin, in
violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(B) and
18 U.S.C. § 2. See Indictment, filed August 22, 1997, in 97 Cr. 829.
Rosa and the other defendants waived their right to a jury trial. (Tr.
5-10).*fn2 On January 5, 1998, the trial began before Judge Rakoff and
continued on January 6, 7 and 8.

During the sentencing proceeding, Rosa's counsel initially stated that
Rosa "wants to withdraw his plea over my recommendation that he not do
so." (S.20). The Court reminded Rosa of the Plea Agreement and the
sentence he was facing. Rosa responded: "That I wasn't really too sure,
your Honor." (S.20). When told by the Court that the probation office was
recommending the lowest number in the stipulated sentencing range, Rosa
asserted that he had "three kids to take care of and, right now, my
mom's, she is really sick." (Id.) The Court denied the motion to withdraw
the plea and sentenced Rosa to a term of imprisonment of 63 months, to be
followed by five years of supervised release, and a mandatory special
assessment of $100. (S.20, 26-27). Rosa did not appeal.

Rosa's Motion to Vacate His Sentence under 28 U.S.C. § 2255

Rosa's present motion is dated April 14, 1999, and was received by the
Court on April 19, 1999. See Genaro Rosa's (Prisoner No. 42012-054)
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (hereinafter, "Motion to Vacate"
or "Motion"). Rosa raises multiple grounds in support of the relief he
seeks, almost all of which are set forth without any elaboration. See
Motion to Vacate at 5-6, and unnumbered page. His claims, reproduced
verbatim, are as follows:

A. Ineffective Assistance of Counsel-Sixth Amendment
Violation. Counsel failed to adequately investigate
and prepare for the case; counsel also failed to
properly communicate the risks of going to trial,
depriving him to make a plea knowingly and willingly.
He was held in a county which was in very bad
condition for (5) months before being indicted and
never waive or gave my attorney permission to do so.

B. Conviction obtained by plea of guilty which was
unlawfully induced or not made voluntarily or of with
understanding of the nature of the charge and
consequences of the plea. Lying to the defendant as to
sentence to be imposed, rushing into plea without
investigation, plea not knowingly and intelligently
made (see attached from psychologist the IQ is
extremely low). His attorney was well aware that Mr.
Rosa didn't comprehend very well but force him to sign
a plea agreement he never seen or went over before.
Plea urged for the sake of a contingent plea agreement
for codefendant, failure to request time in which to
review Jencks material.

C. The sentence was imposed in violation of the Due
Process Clause of the Fifth and Sixth Amendment.
Counsel failed to raise timely, formal, written
objections to the PSI erroneous computation of the
amount drugs attributed to the defendant, Mr. Rosa
stated he never seen any drug. Failure to object to ex
parte information provided to the court before
sentencing. Counsel failed to sit in on the interview
with the Probation officer.

D. Denial of Right of Appeal. Failure to give notice
of appeal for defendant, failure to advise filing
notice of appeal, deceiving the defendant as to the
existence of an appeal, refusal of trial counsel to
turn over case files for post-conviction relief.

E. Federal Sentencing Guidelines. Failure to argue for
a reduction in base offense level, I was incarcerated
in nonfederal institution (county jail) for (5) months
with extraordinary conditions. I was a first time
offender and was eligible for two point reduction for
my minor role.

F. Conviction obtain by use of false evidence gained
pursuant to an unconstitutional search and
seizure-Fourth Amendment Violation. No record of a
search warrant up to this date.

Motion to Vacate at 5-6, and unnumbered page.

The Motion to Vacate was referred to a Magistrate Judge on June 14,
1999. It was redesignated for decision by the undersigned on April 18,
2001.

Basis for Section 2255 Relief

28 U.S.C. § 2255 provides that:

[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate,
set aside or correct the sentence.

28 U.S.C. § 2255. Relief under section 2255 is available only "for
constitutional error, lack of jurisdiction, or an error of law or fact
that constitutes a fundamental defect which inherently results in a
complete miscarriage of justice." Graziano v. United States, 83 F.3d 587,
589-90 (2d Cir. 1996) (internal quotation marks and citations omitted).

Effect of Rosa's Failure to Appeal

A section 2255 motion may not be used as a substitute for a direct
appeal. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71
L.Ed.2d 816 (1982). Where a petitioner does not bring a claim on direct
appeal, he is barred from raising that claim in a subsequent section 2255
proceeding unless he can establish both cause for the procedural default
and actual prejudice resulting therefrom. See, e.g., Amiel v. United
States, 209 F.3d 195, 198 (2d Cir. 2000) (citing Billy-Eko v. United
States, 8 F.3d 111, 115 (2d Cir. 1993)); United States v. Canady,
126 F.3d 352, 359-60 (2d Cir. 1997) (citing Reed v. Farley, 512 U.S. 339,
355, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994)); Campino v. United States,
968 F.2d 187, 189 (2d Cir. 1992). This rule also applies where the
defendant fails to appeal at all. See United States v. Pipitone,
67 F.3d 34, 38 (2d Cir. 1995) ("cause and prejudice" requirement applies
where there is a "complete failure to take a direct appeal"). The term
"cause" means "something external to the petitioner, something that
cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722,
753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis in original).

Where a ground raised in a section 2255 motion is based on ineffective
assistance of counsel, however, the rule requiring the ground to have
been raised on appeal does not apply on the theory that the ineffective
assistance of counsel itself provides the "cause" for the failure to
appeal the issue. See, e.g., Bloomer v. United States, 162 F.3d 187, 192
(2d Cir. 1998); Riascos-Prado v. United States, 66 F.3d 30, 34-35 (2d
Cir. 1995) (citing Billy-Eko v. United States, 8 F.3d at 115). Thus, to
the extent that Rosa raises a bona fide claim of ineffective assistance
of counsel, the doctrine requiring that claims be
raised first on appeal would not bar him from obtaining section 2255
review.

Effect of Rosa's Agreement Not to Seek Section 2255 Relief

In this case, another potential bar to Rosa's motion is his having
entered into a Plea Agreement under which he agreed not to seek relief
under 28 U.S.C. § 2255 if — as occurred here — he
received a sentence within or below the agreed-upon range of 63 to 78
months imprisonment. See Plea Agreement at 3.

The law is clear that, with respect to the waiver of a right to an
appeal, "a defendant's knowing and voluntary waiver of his right to appeal
a sentence within an agreed upon guideline range is enforceable." United
States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998); accord United
States to Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000) (waiver of an
appeal is valid if entered into knowingly and voluntarily). Thus, a
defendant "who has secured the benefits of a plea agreement and knowingly
and voluntarily waived the right to appeal a certain sentence [may not]
then appeal the merits of a sentence conforming to the agreement. Such a
remedy would render the plea bargaining process and the resulting
agreement meaningless." United States v. Salcido-Contreras, 990 F.2d 51,
53 (2d Cir. 1993). While this case law pertains to a waiver of the right
to appeal, there is no "principled means of distinguishing [a section
2255] waiver from the waiver of a right to appeal," United States v.
Wilkes, 20 F.3d 651, 652 (5th Cir. 1994), and it should apply equally to
Rosa's waiver of his right to seek post-conviction relief generally.
See, e.g., Gumbs v. United States, 8 F. Supp.2d 882, 883 (S.D.N.Y.
1998).

Nonetheless, "a plea agreement containing a waiver of the right to
appeal is not enforceable where the defendant claims that the plea
agreement was entered into without effective assistance of counsel."
United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (citing
United States v. Djelevic, 161 F.3d at 107). "The rationale is that `the
very product of the alleged ineffectiveness' cannot fairly be used to bar
a claim of ineffective assistance of counsel." Hernandez, 242 F.3d at 114
(citing Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)).
Similarly, a section 2255 waiver is unenforceable where the asserted
ground for challenging the sentence is ineffective assistance of counsel
in connection with the plea negotiations or agreement itself. See Jones
v. United States, 167 F.3d at 1145; Balbuena v. United States,
104 F. Supp.2d 218, 220 (S.D.N.Y. 2000).

Thus, to the extent that Rosa has bona fide claims of ineffective
assistance of counsel in connection with his plea, his agreement not to
seek relief under 28 U.S.C. § 2255 will not be enforced against him.

Law Governing Claims of Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, the
petitioner must (1) show that counsel's representation fell below "an
objective standard of reasonableness" under "[p]revailing norms of
practice;" and (2) "affirmatively prove prejudice" by showing that there
is a reasonable probability that "but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 693-94, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). A petitioner must establish both counsel's deficiency
and resulting prejudice to succeed on an ineffective assistance of
counsel claim. See id. at 687, 104 S.Ct. 2052.

It is well established that "[j]udicial scrutiny of counsel's
performance must be highly deferential." Strickland, 466 U.S. at 689, 104
S.Ct. 2052. Thus a court must give counsel "wide latitude in making
tactical decisions" because a petitioner seeking to establish
constitutionally ineffective assistance of counsel must overcome "a
strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance . . . that, under the circumstances,
the challenged action `might be considered sound trial strategy.'"
Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v.
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)); see,
e.g., United States v. Jones, 918 F.2d 9, 11 (2d Cir. 1990) (counsel's
decisions are not to be evaluated in "hindsight"). "[S]trategic choices
made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable." Strickland, 466 U.S. at 690, 104
S.Ct. 2052.

Where a petitioner establishes counsel's incompetence, the petitioner
must still meet the second prong of the test, Strickland, 466 U.S. at
687, 104 S.Ct. 2052, and show that he was prejudiced by counsel's
actions. See id. at 693-94, 104 S.Ct. 2052. There must be a showing of "a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694, 104
S.Ct. 2052. In the context of a guilty plea, the second part of the test
is met by showing "a reasonable probability that, but for counsel's
errors, [the defendant] would not have pleaded guilty and would have
insisted on going to trial." United States v. Coffin, 76 F.3d 494, 498
(2d Cir. 1996) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366,
88 L.Ed.2d 203 (1985)). It is not enough for the petitioner to show that
counsel's error had "some conceivable effect" on the outcome of the
case; there must be a showing that the "decision reached would reasonably
likely have been different." Strickland, 466 U.S. at 693, 696, ...

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